Luna v. MidFirst Bank et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lucifer Valdez Luna,
Plaintiff,
v.
MidFirst Bank, et al.,
Defendants.
No. CV-26-04288-PHX-KML
ORDER
Plaintiff Lucifer Valdez Luna filed a complaint and an application for leave to
proceed in forma pauperis. (Doc. 2.) The application is granted, which requires the court
determine whether the complaint states any claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii).
It does not.
BACKGROUND
Luna “suffers from Psychogenic Non-Epileptic Seizures” which may result in
seizures due to “extreme or prolonged sun exposure.” (Doc. 1 at 4-5.) On April 10, 2026,
Luna was waiting near a bus stop when they1 sought “medically necessary shade on a
perimeter wall located directly adjacent” to the bus stop. (Doc. 1 at 5.) That wall appears
to be on property owned by defendant MidFirst Bank. Luna sat on the wall, as they had
previously done “routinely and without issue.” (Doc. 1 at 5.) A security guard employed
by defendant Allied Universal approached Luna and “attempted to explicitly order [Luna]
off of the easement, directing [Luna] to specifically sit at the bus stop.” (Doc. 1 at 5.) Luna
1 The complaint uses “they” when referring to Luna and the court does the same.
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stated they had used the location previously and the guard informed Luna they “could lean
on the perimeter wall, but not sit.” (Doc. 1 at 5.) Luna asked the guard for a “bank manager
to explain the situation,” but the guard went inside the bank. (Doc. 1 at 5.)
Once inside, the guard spoke on the phone and “then returned outside to again order
[Luna] over to the bus stop.” (Doc. 1 at 6.) The “guard threatened to call the police and
have [Luna] arrested for trespassing.” (Doc. 1 at 6.) Luna attempted to speak to the bank
manager, but the guard blocked Luna from “directly communicating” with the manager.
(Doc. 1 at 6.)
Later that day, Luna sent an email to MidFirst regarding the incident. A MidFirst
employee responded with “a brief, non-committal response, and a vague promise to look
into the matter.” (Doc. 1 at 8.) Luna sent a follow-up email that included what Luna
“requested for resolution.” (Doc. 1 at 9.) An Allied Universal employee sent an email to
Luna that same day, providing a “vague apology.” (Doc. 1 at 9.) A MidFirst regional
manager sent a response to Luna’s follow-up email, stating the guard was not employed by
MidFirst.
Luna alleges the guard’s actions, as well as “the lack of active, prompt cooperation,
and lack of acknowledgement of the severity of the incident” caused a breakthrough
seizure. (Doc. 1 at 10.) The guard’s actions and resulting seizure “forced a total halt of
[Luna’s] operational businesses” and interfered with Luna’s ability to provide their
“freelance pet-sitting services.” (Doc. 1 at 11-12.) Luna sent written demands to MidFirst
and Allied Universal seeking, among other forms of relief, a “base settlement of $46,160.”
(Doc. 1 at 12.) Luna did not receive a response from either entity.
Luna alleges four claims based on these facts. First, “negligence” based on both
defendants “deploy[ing] hostile personnel to arbitrarily enforce an alleged, unverified
policy related to a public easement.” (Doc. 1 at 13-14.) Second, intentional infliction of
emotional distress based on the guard’s “extreme and outrageous conduct by accosting,
harassing, and verbally intimidating a citizen on a public perimeter.” (Doc. 1 at 14.) Third,
“personal injury” based on defendants’ refusal “to reach a satisfactory resolution” after the
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incident at the bus stop. And fourth, “Title III Americans with Disabilities Act Violation”
based on defendants “actively blocking access to life-preserving, medically necessary
shade.” (Doc. 1 at 15.)
ANALYSIS
When a plaintiff is proceeding in forma pauperis, the complaint may proceed only
if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (simplified). This is not
a “probability requirement,” but a requirement that the factual allegations show “more than
a sheer possibility that a defendant has acted unlawfully.” Id. A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether
a complaint states a plausible claim for relief . . . [is] a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “It
is not the job of the district courts to make sense of the pleading, to supply facts to support
the claim, or to imagine the claims that might fit the facts.” Gibson v. City of Portland, 165
F.4th 1265, 1289 (9th Cir. 2026).
I. Negligence
Luna’s first claim is for “negligence.” The basis of this claim appears to be
intentional, not negligent, actions. That is, Luna alleges defendants “deployed hostile
personnel to arbitrarily enforce an alleged, unverified policy related to a public easement.”
(Doc. 1 at 13-14.) Arizona law provides “negligence and intent are mutually exclusive
grounds for liability.” Ryan v. Napier, 425 P.3d 230, 236 (Ariz. 2018). An intentional tort
requires “the actor desires to cause [the] consequences of his act, or that he believes that
the consequences are substantially certain to result from it.” Id. at 235. For example, “if a
defendant acts with the intent to cause a harmful or offensive touching (battery), that same
act cannot constitute negligence.” Id. at 236. Here, all of Luna’s allegations involve
intentional acts by MidFirst and Allied Universal employees. Because there are no
allegations of negligence, this claim is dismissed with leave to amend.
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II. Intentional Infliction of Emotional Distress
Luna’s second claim is for intentional infliction of emotional distress. The standard
for this claim is difficult to meet because it requires allegations of “extreme and outrageous
conduct.” Christakis v. Deitsch, 478 P.3d 241, 245 (Ariz. Ct. App. 2020). To qualify, the
conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency” such that it is “regarded as atrocious and utterly intolerable in
a civilized community.” Id. (simplified). The “conduct must completely violate human
dignity and strike to the very core of one’s being, threatening to shatter the frame upon
which one’s emotional fabric is hung. It does not include mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Id. (simplified).
Luna alleges a guard told them to stop sitting on a wall and threatened to call the
police if Luna refused to relocate. (Doc. 1 at 14.) Luna later had contact with other MidFirst
and Allied Universal employees, and those responses did not meet Luna’s expectations.
These actions are not close to establishing a viable claim for intentional infliction of
emotional distress. This claim is dismissed with leave to amend.
III. Personal Injury
Luna’s third claim is for “personal injury.” (Doc. 1 at 15.) The court is unable to
determine the legal basis for this claim. The complaint seems to base this claim on a seizure
Luna experienced after they failed “to reach a satisfactory resolution following the April
10th incident.” (Doc. 1 at 15.) In other words, Luna is asserting this “personal injury” claim
based on defendants’ failure to settle with them before this suit was filed. Luna has not
provided any indication what legal theory might require defendants to have reached “a
satisfactory resolution” based on Luna’s demands. This claim is dismissed without leave
to amend.
IV. Title III ADA
Luna’s final claim is defendants violated the ADA by not allowing them to sit on
the wall next to the bus stop. This claim suffers from three obvious flaws, one regarding
standing and two regarding the merits.
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First, “[p]rivate plaintiffs are limited to seeking injunctive relief under Title III of
the ADA, so a plaintiff suing a place of public accommodation must show a sufficient
likelihood of injury in the future to establish standing.” Langer v. Kiser, 57 F.4th 1085,
1092 (9th Cir. 2023). This means previously “[e]ncountering ADA violations at a place of
public accommodation . . . is not itself sufficient for standing.” Id. To establish standing to
proceed on this claim, Luna would need allegations that they intend to return to the bus
stop, intend to seek shade again by sitting, and MidFirst’s hired security will prohibit them
from doing so. Id. at 1094. That sequence of events seems implausible, but its plausibility
need not be assessed yet because Luna has not even alleged this sequence of events. The
present allegations are not sufficient to establish Luna’s standing.
The first merits-based flaw with Luna’s ADA theory is that the wall next to the bus
stop does not appear to be a place of public accommodation, nor does it appear to qualify
as a “‘facility’ encompassed in the ‘goods, services, facilities, privileges, advantages, or
accommodations’ offered by a place of public accommodation.” Langer v. Kiser, 57 F.4th
1085, 1101 (9th Cir. 2023) (quoting 42 U.S.C. § 12182(a)). Places of public
accommodation “are actual, physical places where goods or services are open to the public,
and places where the public gets those goods or services.” Id. at 1100 (simplified). The
bank itself may be a place of public accommodation, but Luna has not alleged sufficient
facts establishing a wall outside the bank should qualify as well. As for “facilities,” they
are “all or any portion of buildings, structures, sites, complexes, . . . roads, walks,
passageways, parking lots, or other real or personal property, including the site where the
building, property, structure, or equipment is located.” Id. at 1101 (simplified). Again, the
parking lot of the bank and surrounding sidewalk might qualify as “facilities,” but Luna
has not alleged sufficient facts that the perimeter wall should qualify as well.
The second merits-based flaw is, even assuming the wall might qualify as a facility
under the ADA, Luna does not allege it was open for use by the general public. Excluding
a disabled individual from a portion of a business “that is closed to the public” does not
violate the ADA. Id. (simplified). Luna does not allege any facts that the wall was open to
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use by the general public. In fact, Luna’s complaint appears to allege the opposite as it
alleges the interaction with the guard occurred before Luna was provided a “chance to
disclose their disorder.” (Doc. 1 at 6.) In other words, there are no allegations the guard
was even aware Luna had a disability at the time Luna was told not to sit on the wall. The
guard appears to have been enforcing a general prohibition on members of the public using
that portion of the property. The ADA claim is dismissed with leave to amend.
V. Leave to Amend
Luna’s complaint is dismissed but they are granted leave to amend all of their claims
except for the “personal injury” claim, which is dismissed without leave to amend. If Luna
chooses to amend, “the amended complaint may only allege other facts consistent with”
the original complaint. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)
(simplified). Luna must file both the amended complaint and a version of the amended
complaint that indicates how it differs from the original complaint.
IT IS ORDERED the Application (Doc. 2) is GRANTED.
IT IS FURTHER ORDERED the complaint (Doc. 1) is DISMISSED WITH
LEAVE TO AMEND. No later than July 10, 2026, plaintiff shall file an amended
complaint. Plaintiff must also file a version of the amended complaint that indicates how
it differs from the original complaint. The Clerk of Court is directed to enter a judgment of
dismissal with prejudice if no amended complaint is filed by that date.
Dated this 29th day of June, 2026.
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